A Win For Accidentally Aired Expletives

U2 singer Bono gestures as he talks during a media conference after a meeting with EU Commission President Jose Manuel Barroso, not seen, at the EU Commission in Brussels, Tuesday, May 15, 2007. (AP Photo/Geert Vanden Wijngaert )
AP Photo/Geert Vanden Wijngaert
A federal appeals court on Monday found that a new Federal Communications Commission policy penalizing accidentally aired expletives was invalid, saying it was "arbitrary and capricious" and might not survive First Amendment scrutiny.

The 2nd U.S. Circuit Court of Appeals did not, however, outlaw the policy outright. In a 2-1 ruling, it found in favor of a Fox Television-led challenge to the policy and returned the case to the FCC to let the agency try to provide a "reasoned analysis" for its new approach to indecency and profanity. It added it was doubtful the FCC could do so.

The broadcasters had asked the appeals court last year to invalidate the FCC's conclusion that profanity-laced broadcasts on four shows were indecent, even though no fines were issued.

The new policy was put in place after a January 2003 broadcast of the Golden Globes awards show by NBC when U2 lead singer Bono uttered the phrase "f------ brilliant." The FCC said the "F-word" in any context "inherently has a sexual connotation" and can trigger enforcement.

Monday's ruling favored Fox's challenge to the FCC's finding of indecency in regards to a Dec. 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the phrase "F--- 'em" and a Dec. 10, 2003, Billboard awards show in which reality show star Nicole Richie said, "Have you ever tried to get cow s--- out of a Prada purse? It's not so f------ simple."

The FCC late last year had dropped its indecency claims against two other television broadcasts.

FCC Commissioner Michael J. Copps said the court's decision was "disappointing to me and to millions of parents and concerned citizens across the land" but "doesn't change the FCC's legal obligation to enforce the indecency statute."

"So any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake," Copps said in an e-mailed statement. "The FCC has a duty to find a way to breathe life into the laws that protect our kids."

He said an appeal was possible.

A recent Pew poll found that while Americans worry about what kids watch, profanity is low on their list of concerns, reports CBS News Correspondent Nancy Cordes.

"They're worried about sex, people are worried about violence, they're worried about reality shows, they're worried about immorality. But only about 10 percent say that their big concern is abusive language," Andrew Kohut, president of the Pew Research Center, tells Cordes.

In a statement, Fox Broadcasting said: "We are very pleased with the court's decision and continue to believe that government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment. Viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home."

In its ruling, the appeals court said it found that the FCC's new policy regarding so-called fleeting expletives "represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry."

  • Stephen Smith

    Stephen Smith is a senior editor for CBSNews.com